Excerpt: - - patel, as well as mr. and not merely under sections 341 & 114. after having missed that opportunity the complainant could have challenged the order of november 18, 1981 dismissing his complaint for non-appearance in the higher court but for the reasons best known to himself, he has chosen not to do so and has allowed that order to become final......under sections 341, 114 and 452 of the indian penal code. after reading the complaint the learned magistrate thought it fit to issue process against the accused persons for offences under sections 341 & 114 i. p. c. only. for the reason which is not disclosed, the learned magistrate did not issue process for the offence under section 452 i. p. c. the process was ordered to be issued on may 19, 1981 and the notice was made returnable on june 11, 1981. after that, what happened in the court is not brought on the record of this case. however, the learned magistrate passed an order on november 18, 1981 staling that the complainant was not present in the court and the complaint was dismissed due to his absence and the accused were set at liberty.2. subsequently a second complaint was.....

Judgment:

A.S. Qureshi, J.

1. The petitioners in this application were the original accused against whom a complaint was filed by the opponent No. 1 before the learned Judicial Magistrate, First-Class, Dhandhuka. In the said complaint it was alleged that the accused had committed certain acts which were punishable under Sections 341, 114 and 452 of the Indian Penal Code. After reading the complaint the learned Magistrate thought it fit to issue process against the accused persons for offences under Sections 341 & 114 I. P. C. only. For the reason which is not disclosed, the learned Magistrate did not issue process for the offence under Section 452 I. P. C. The process was ordered to be issued on May 19, 1981 and the Notice was made returnable on June 11, 1981. After that, what happened in the Court is not brought on the record of this case. However, the learned Magistrate passed an order on November 18, 1981 staling that the complainant was not present in the Court and the complaint was dismissed due to his absence and the accused were set at liberty.

2. Subsequently a second complaint was filed by the opponent No. I in the same court against the same accused on the same facts set out in the earlier complaint. On the second application the learned Magistrate has issued process not only under Sections 341 and 114 I. P. C. but also under Section 452 I. P. G. The present applicants have filed this petition to quash and set aside the said proceedings being Criminal Case No. 973 of 1981 pending in the court of Judicial Magistrate, First-Class, Dhandhuka.

3. It is argued by Mr. H. L. Patel, the learned Counsel for the applicants that the earlier order dated November 18, 1981, passed by the learned Magistrate on the previous complaint was passed under Section 256 of the Criminal Procedure Code and that it was an order of acquittal and, therefore, there was a bar of Section 300 against the second complaint for the same incident. Mr. H. L. Patel, as well as Mr. A. J. Patel, the learned Public prosecutor, who is in this case supporting the arguments advanced by Mr. H. L. Patel, submit that the second complaint, having been based on the same facts as set out in the first complaint is not maintainable although the earlier process was issued only for the offences punishable under Sections 341 and 114 I. P. C. because according to them, the language of Section 300 is quite clear that a person cannot be tried again, when he is once acquitted and while that acquittal is still in force, for the same offence or for any other offence based on the same facts. Against this submission of Messrs H. L. Patel and A. J. Patel, Mr. M. M. Dave, the learned Counsel for the respondent No. 1 has urged that the present case does not come within the purview of Section 300 for several reasons. According to him, the order dated November 18, 1981 does not amount to acquittal and even if it is construed to amount to acquittal, it would be only an acquittal for the offences for which the process was issued namely under Sections 341 and 114, but it cannot amount to an acquittal for the offence under Section 452 for which no process was issued and also for the reason that the offence under Section 452 of the I. P. C. being a warrant triable case, there cannot be an acquittal. Mr. Dave has also argued that in this case, there is actually no trial because the case had not reached the stage of hearing on merits. It was only at the initial stage. According to him, the word 'trial' in Section 300 of the Criminal Procedure Code contemplates the hearing of the case on merits. Unless a case is heard on merits and decided on the evidence led before the court, it cannot be said to be a trial to give the accused persons an immunity from being tried over again.

4. As regards the first contention of Mr. Dave that there is no acquittal in this case he has pointed out that under Section 203 the Magistrate is empowered to dismiss a complaint on perusal of the same and not finding any substance therein. In the present case, according to him, all that has happened is that the learned Magistrate has issued process and, therefore, the case is at its inception. Hence the aforesaid order of November 18, 1981 could be regarded as an order under Section 203 of the Criminal Procedure Code. It is difficult to accept this sub-mission of Mr. Dave because, the learned Magistrate after having applied his mind had found that there is some factual basis for the allegations made in the complaint and there is a prima facie case for the accused to answer, he has issued the process. If there was no substance in the matter, he would not have issued the process at all, but the issuance of process shows that the earliest stage to trial has commenced. It is an important question as to at what stage of the proceedings can a 'trial' be said to begin. Obviously, when the Court is moved by a party and the Court applies its mind and gives an order or direction to issue process, the first step in the legal process can be said to have commenced which would be the beginning of the trial. Mr. Dave's submission that the trial means when the major court proceedings have been gone through does not appear to be correct.

5. Once a trial begins it must end in acquittal or conviction. When an accused person is held to beacquitted, it cannot be said that there was no trial, because it would be a contradiction in terms and it cannot be said that a person is acquitted without trial. Therefore, the acquittal at whatever stage and for whatever reason is an acquittal after the trial. Even at the early stages of trial, once a trial has commenced, it is none-the-less a trial. It cannot be said that it is not a trial until the matter is fully heard on merits and decided after recording evidence. Therefore, it appears that the person can be said to be tried for the purpose of Section 300 of the Criminal Procedure Code once the trial has commenced. It would continue to be so at all stages till it ends in either conviction or acquittal.

6. The next submission of Mr. Dave that even if it is held that the aforesaid order of November 18, 1981 amounted to an acquittal, it could be acquittal only for the offences under Sections 341 and 114 for which the process was issued. According to him, it cannot be regarded as an acquittal for the offence under Section 452 for which no process was issued. This submission of Mr. Dave is correct and must be upheld. It cannot be said to be an acquittal for the offence under Section 452 I.P.C. not only because there is no process issued for the said offence but also because the said offence being a warrant triable there cannot be an acquittal. But Mr. Dave is not right in his submission that the second complaint could be filed for the trial of the accused for the offence under Section 452 I.P.C. alone because the language of Section 300 of the Criminal Procedure Code is quite clear that the order of acquittal would bar a second trial..on the same facts for any other offence for which a different charge from the one made against him might have been made....

With these words, the legislature has made it very clear that Section 300 of the Criminal Procedure Code in its purview takes into account not only the charges actually levelled against the accused but also the charges which could have been levelled.

The next submission of Mr. Dave is that the offence alleged to have been committed by the accused in this case is a continuing offence and the same is being committed day after day. Hence the second complaint would be maintainable in respect of such subsequent commission of offence. This argument of Mr. Dave also is not tenable in view of the language of Section 300 of the Criminal Procedure Code. While acquittal remains in force, no subsequent trial can be based on the same facts. But if the offence is a continuing offence, the accused can certainly be tried for the offence committed on subsequent days. It is open to the opponent No. 1 to file a complaint against the accused (present applicants) for the alleged offence committed subsequently and being committed every day till this day. He could file one complaint every day if he so desires for the alleged continuing offence. But the original complaint is exhausted. Now the new complaint would be in respect of the new offence on a subsequent day.

7. It would be worthwhile to note that the original complainant did not think it necessary to draw the attention of the learned Magistrate to the fact that he should have issued process against the accused for the offences under Section 452 I. P. C. and not merely under Sections 341 & 114. After having missed that opportunity the complainant could have challenged the order of November 18, 1981 dismissing his complaint for non-appearance in the higher court but for the reasons best known to himself, he has chosen not to do so and has allowed that order to become final. Although the opponent No. 1 has not filed any acquittal appeal against the said order so far, but Mr. Dave states that his client intends to file the same now together with an application for condonation of delay. This is of course open to the present opponent to do if he so desires. Any observation made in this Judgment will not in any way bar or impede his contentions in such acquittal appeal if and when he files it.

8. In the result, this Miscellaneous Criminal Application is allowed. The proceeding pending before the learned Judicial Magistrate, Dhandhuka in Criminal Case No. 973 of 1981 is ordered to be quashed and set aside. Rule is made absolute.